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ADDRES 




BENJAMIN F. BUTLER 



Judges of the Ciroht Court of the United States, 



THE presentation OF THE RESOLUTIONS OF THE BAR OF THAT COURT 
AS A TRIBUTE TO THE MEMORY OF 




CALEB CUSHIN. 



BOSTON : 

FRANKLIN PRESS: RAND, AVERY, & CO. 

1879. 



ADDRESS 



BENJAMIN F. BUTLER 



Judges of the Circuit Court of the United States, 



THE presentation OF THE RESOLUTIONS OF THE BAR OF THAT COURT 
AS A TRIBUTE TO THE MEMORY OF 



CALEB GUSHING. 




BOSTON r^ 

FRANKLIN PRESS; RAND, AVERY, & CO. 
1879. 



L 



ADDRESS. 



May it please your Honors, — On occasions like the 
present, when appreciative friendship commemorates the 
services, and recalls with kindly thought the striking traits of 
character, of one whom it seeks to honor, I have very often 
thought 

" The poor common words of courtesy 
Are such a very mockery." 

I therefore crave indulgence if I deviate from the well- 
worn track to take the opportunity of giving expression to 
some of the peculiar traits of character, as shown in the 
course of the professional life and public services of Mr. 
Gushing, as they have become known to me through a friend- 
ship of the duration of more than a generation. -,' 

The peculiarity of Mr. Gushing as a lawyer I deem to have 
been, that he was pre-eminently learned and great in one 
branch of the law, and most eminent in all. Other lawyers 
of his generation had some specialty in which they shone 
conspicuous over all ; but, speaking in the hearing of those 
who know, I insist that it was his characteristic, that, while 
he stood foremost of all as learned in public law, he was 
equal to any in his learning in every branch of the law.j A 
great English statesman made the charge upon our profes- 
sion, that " learning in the law narrowed the mind," If so, 
Galeb Gushing was most proudly an exception to that rule. 
In every department of belles-lettres, in acquirement of lan- 
guages, in knowledge upon scientific questions, in acquaint- 
ance with history, in knowledge of ethnology, for thorough 



and intimate mastery of every branch of political science, he 
had no superior, if even an equal. 

If called upon to give the leading idiosyncrasy of his char- 
acter, I should sum it all up in the word "loyalty;" covering 
by that term personal fealty to friendships, faithfulness to a 
fault in every service, professional or political, in which he 
was engaged, and, above all, loyalty to his country and her 
Government, bearing true faith and allegiance to his State, 
always subservient to his higher and broader obligation to the 
United States. As her citizen he held in high honor the 
Commonwealth of Massachusetts. No more eloquent or 
worthier tribute has ever been paid to Massachusetts than fell 
from his lips in early life in his first appearance in the Con- 
gress of the United States. 

Not blind to what he deemed her faults, — ever tender of 
them, — he was eagle-eyed to discover and eager to point out 
her virtues. But to the Government of the United States, 
to the whole country, he bore, if I may so express myself, a 
higher and holier allegiance. To him the Government of the 
United States was an entity. It mattered not who adminis- 
tered her affairs : he served his country with equal fidelity, 
whether those charged with the execution of the government 
were political or personal friends or foes. To him the Gov- 
ernment of the United States, using his own words, was a 
" fixed fact ; " and he ever strove to serve his Government, 
irrespective 'of the personal qualities of the men who for the 
time being exerted its powers. Like, the Highlander who 
sacrificed, one after another, his nine brave sons to cover the 
cowardice of his chieftain, so Mr. Gushing was ever ready to 
give up every thing to serve his Government, however much 
he was opposed to the idiosyncrasies of those at the head of 
it. This was seen in his treatment of John Tyler's adminis- 
' tration ; and this' trait of his character caused the careless and 
unthinking not unfrequently to misunderstand his acts, and 
impugn his motives. 

Men, and great men, have ofttimes used their mighty 
powers to thwart the purposes and embarrass the action of 
administrations to which they were politically opposed. Not 
so with Gushing. Never assuming that any man whom the 



5 

people had vested with the administration of the governnnent 
could wish to do aught but what might redound to the unity 
and prosperity of his country, Mr. Gushing, from the very 
bent of his mind, sought opportunity and found reasons for 
supporting every act of Government. 

This trait was as fully illustrated as in any epoch of his 
life when he served as the law officer of the Government dur- 
ing the administration of President Pierce. Learned lawyers, 
astute politicians, and in some instances profound statesmen, 
had occupied the position before him ; and until he took 
the office the Attorney-General was in the habit of accepting 
.retainers to argue private causes in the Supreme Court. He 
put an end to that custom. Devoting the whole energies of 
his nature, his untiring industry, and great capacity, to the 
service of his chief, who, in his eye, was the President of the 
United States only, and his superior, he raised the office of 
Attorney-General, and organized it to be in truth and in fact 
a department of the Government, and the Department of Jus- 
tice. His knowledge of affairs, his great learning, pervaded 
and became an aid to every portion of the administration. It 
is no discredit to the statesmen who were the cabinet, to say 
that they all relied upon him. 

How thoroughly this was so, will be seen in the three vol- 
umes of his opinions, which contain a body of public law, a 
series of discussions upon every possible question of admin- 
istration and every possible relation of the Government to the 
people and to the States, which is nowhere equalled since 
Bacon in thoroughness of argument and scope of knowledge. 
Nor do Mr. Cushing's labors all appear in these volumes. He 
aided the Secretary of State, Marcy, — than whom none was 
greater, — in defining our relations of neutrality as between 
Russia and Great Britain, and laid the foundation of that code 
of laws which should govern neutrals, which years afterwards 
stood for so much when we claimed by the treaty of Wash- 
ington reparation for the violation of neutrality by Great 
Britain in the war of 1861. Mr. Gushing will be found to 
have systematized the administration of our laws in relation 
to our public lands, especially in that most difficult part as 
applied to territory newly acquired from Mexico. 



The unity of a President and his cabinet preserved during 
an entire administration is thought to be a desideratum. The 
cabinet of President Pierce has the merit of having been the 
first and only one which did not change in its personnel 
during its four years of administration. 

This result, as I happen to know, was due, in one instance 
at least, not only to the executive tact and grace of the Presi- 
dent, but largely to the patriotism, the good sense, and the 
judicious action of Mr. Gushing, in definitively settling, in one 
of his exhaustive opinions, the line of demarcation bstween 
the rights, powers, and duties of the Secretary 'of War as a 
civil officer, and of the general of the army and his subordi- 
nates as military officers. 

Lieut.-Gen. Scott, the conqueror of Mexico, the candidate 
against Gen. Pierce for the office of President, during his 
administration commander of the armies of the United States, 
claimed for himself and the officers of the army extended 
powers and rights in the conduct of the army and military 
subjects, which Mr. Davis, the Secretary of War, as a civilian, 
refused to recognize. The conflicting claims of these high 
officers put President Pierce in a very delicate position in 
deciding the questions in difference between them. It is a 
matter of well-known history, that, on account of what Jef- 
ferson Davis believed to be the unfair and very selfish treat- 
ment of Gen. Taylor in the Mexican war by Gen. Scott, — 
treatment which Davis conceived went to the extent of taking 
troops away from Taylor in order that the latter might reap 
no laurels from his attempted overland march to Vera Cruz 
by way of Buena Vista, — Mr. Davis became violent and hos- 
tile in his relations with Scott. It is also matter of history, 
that the accounts of Scott, while the latter was in command 
in Mexico, were not satisfactory to the accounting-officers of 
the treasury, and were not passed during the administrations 
of Polk, Taylor, or Fillmore, but were left as a legacy to 
the administration of Pierce. It was probably this hostility 
between Davis as Secretary of War, and Scott as general-in- 
chief, which induced the latter to ask that his headquarters 
might be in New York ; which request was granted. Out of 
these things and other things came a most bitter but very 



clever correspondence between Davis and Scott, which was 
printed at the time, and which quite rivalled the celebrated 
Marcy-Scott controversy. Meanwhile the Mexican accounts 
of Scott and other administrative questions came before 
Pierce on a sort of appeal, and he referred a part to Attorney- 
Gen. Gushing for his advice ; and upon that advice, when 
received, the President decided to act. This so annoyed 
Mr. Davis, that he tendered his resignation, which Pierce 
promptly accepted ; but, on the intervention of Mr. Dobbin, 
the advice of Mr. Gushing and the action of the President 
were seen by Mr. Davis to be so just, that he asked to with- 
draw the resignation. 

From the time Mr. Gushing left the office of Attorney-. 
General, in 1857, he has never ceased to be the called-for and 
chosen adviser of every successive administration, down to 
the present, in difficult questions of internal polity or foreign 
relation. We can see proof of this, as we refer to other and 
later acts of his life. 

Mr. Gushing foresaw very early the necessary and inevita- 
ble result of the agitation of the slavery question in the dis- 
ruption of the Union. Although humane and kind-hearted 
to a fault, yet the wrong done to the slave touched him not. 
And why .'* He saw clearly that the bonds of the slave could 
not be broken unless the ties which bound his country to- 
gether as a nation were to be severed. If that was to be the 
dire result of the liberation of the black man, what was 
slavery weighed in the other scale .'' By his loyalty to the 
country, he satisfied his conscience and his judgment that 
it was better that hundreds should perish in slavery, if need 
be, rather than that his country should be dismembered and 
destroyed, or thousands die to save it. He believed that 
in the unity of the country was the hope of mankind for 
free institutions and free government. If the Union was 
destroyed, and our experiment of free government failed, 
— he believed it must fail before slavery could be eradi- 
cated, — then, to him, all was lost. 

To use his own words, which I may also quote in another 
place : " I have no desire to survive the overthrow of the 
Government of the United States." Nay, more : he believed 



further that slavery could not be eradicated without war ; and 
he believed that the result of such a war would be to estab- 
lish imperialism ; and he gave voice to that belief in Norfolk, 
when he uttered that which has now become an idiom of our 
language, "The march of the man on horseback." Is it quite 
certain that this belief was not prophetic, and that such will 
not be the secondary effect of our great war ? 

May we not thus well see, that with his habit of thought, 
believing all this, seeing it so clearly that he may be said to 
have known it, — can we not understand how a just, kind- 
hearted Christian man, in the choice of two evils, said in his 
heart, " Better slavery, great as its evil is, than to fly to the 
ills we know not of " ? 

In i860, therefore, his only political thought was. How can 
the Union of the States be preserved, and the Government 
perpetuated ? and how can war be averted ? for, with the last, 
the destruction of the others must surely come. To attain 
this end, every concession must be yielded, every sacrifice 
must be made. 

To accomplish this, he went to Charleston in i860, and 
presided over the convention of the Democratic party for ten 
successive days. He saw, with unutterable anguish, the dele- 
gates of six of the cotton States secede from that body. If 
that secession went on, war was inevitable ; and his thought, 
and that of those who acted with him was. What can be done 
to bring these States back } A rupture of the Democratic 
party was a rupture of the Union. An adjournment to Balti- 
more was carried ; but, when the convention re-assembled 
there, the places of those seceding delegates were filled by 
men elected subsequently to the adjournment, and who wholly 
misrepresented the feelings of their States ; and the conven- 
tion divided, and two candidates for the Presidency were put 
in the field by the Democratic party, in two factions. The 
rest is history. 

In December, i860, after the election of President Lincoln, 
when the commissioners from South Carolina came to Wash- 
ington to present the ordinance of secession, Mr. Cushing 
deemed war a certain event. On tlie 23d of December of 
that year, with two or three personal friends in Washington, 



the certainty of the approach of war was discussed ; and one 
of those friends turned to myself, and said, " Well, Gen. 
Butler, you are a general in the Massachusetts militia, and 
if the war comes you will have to go. You had better 
resign your commission now." — "No, general," interposed 
Mr. Gushing, " certainly not : it maybe that to the military 
organization of the North the country will have to look for 
its safety." Then, lost in thought for a moment, he looked 
up, and said, " What would one give to know which subaltern 
of the United States army will be the next President of 
the United States .'* " From that hour he took but one part 
in public affairs, and that against his own judgment at the 
request of others. Mr, Gushing made a journey to Gharles- 
ton at the request of the members of the Supreme Gourt, to 
do what he might to stay the tide of secession until better and 
wiser counsels could prevail. This patriotic effort was mis- 
represented by the press ; and it was charged and believed 
that he went to South Garolina to give advice in the interests 
of rebellion. 

Sumter surrendered on the 15th of April, 1861. On the 
24th of April, at a flag-raising in Newburyport, in the pres- 
ence of his fellow-citizens, Mr. Gushing made a speech, from 
which I abstract the following paragraph : — 

"He had before him the question which had occurred to public men 
in other countries when pohtical convulsions divided friend from friend, 
and brother from brother, and sometimes arrayed them against one an- 
other in hostile camps and in deadly strife. What, in such a case, is 
the dictate of duty ? Should we retire into safe seclusion in a foreign 
country, to return in better times, to wear the honors of freedom, like 
Hyde ? or should we remain to affront the perils of our lot, like Falkland 
or Vane ? The latter course, if not the safer one, is at any rate the more 
courageous one. He [Mr. Gushing] chose so to act. He was a citizen of 
the United States, owing allegiance to the Constitution, and bound by 
constitutional duty to support its Government, and he should do so. He 
was a son of Massachusetts, attached to her by ties of birth and affection, 
and from which neither friend nor foe should sever him. He would yield 
to no man in faithfulness to the Union, or in zeal for the maintenance of 
the laws and the constitutional authorities of the Union ; and to that end 
he stood prepared, if occasion should call for it, to testify his sense of 
public duty by entering the field again, at the command of the Common- 
wealth or of the Union." 



lO 

Acting upon the same patriotic impulse, he wrote a letter 
to Gov. Andrew, which I transcribe: — 

Newburyport, 25 April, 1861. 
Sir, — I beg leave to tender myself to you in any capacity, however 
humlile, in which it may be possible for me to contribute to the public 
weal in the present critical emergency. I have no desire to survive the 
overthrow of the Government of the United States. I am. ready for any 
sacrifice to avert such a catastrophe, and I ask only to be permitted to 
lay down my life in the service of the Commonwealth and of the United 
States. 

I am very respectfully, 

C. Gushing. 

His Excellency John A. Andrew, Governor of the Commonwealth. 

This official communication was accompanied by an unoffi- 
cial letter, in which he called to the governor's mind the 
political differences between them, but that now all political 
questions were buried, in view of the raging war. 

Were ever sentiments of purer patriotism uttered or written } 
Was ever a more generous offer of great capacity, of untiring 
industry, and of full allegiance both to his State and nation, 
with desire to lay, down his life in the service of either, made 
by mortal man t 

Was this any new position, in time of war, for Gen. Gush- 
ing to take .^ On the 8th of January, 1847, when speaking 
of the duty of Massachusetts men as to another war then 
raging, and urging that the Commonwealth should take part 
on the side of the country, Mr. Gushing said, — 

" Parties may play with public affairs in time of peace, and agitate 
upon this or that trivial question of the day ; but when war comes, parties 
cannot stand before it ; in its irresistible march, it crushes them like a 
tornado tearing its pathway tlirough the forest. It absorbs, controls, 
dominates, all the passions and emotions of men and of nations." 

Have I not well said that the characteristic trait of Mr. 
Gushing was loyalty to his country .-* 

All remember the answer of Gov. Andrew, — in substance 
that Massachusetts had no place, in council or in field, for 
such a man as Galeb Gushing. 

That answer was cruel ; but not now is the time, or here 
the place, to animadvert upon it or apologize for it. 



1 1 

How Mr. Cashing regarded it, you may sec from a letter 
written at the time to a hfe-long friend : — 

Newburyport, 2 May, 1851. 
Dear Sir, — The governor's letter is merely insulting. It is in the 
spirit of the atrocious acts proposed in New York and Boston, which 
imply the utter barbarism of the whole North. This letter relieves my 
conscience of the sense of public duty in virtue of allegiance. I am 
reflecting on passive probabilities, remaining in Massachusetts to meet 
the worst, an exile, or emigration to California or the North-west. I 
have been very busy, assorting and filing pajDers for any emergency, 
and I am now pretty nearly ready. 

Yours, C. C. 

The effect was not to cause Gushing to swerve one hair in 
his loyalty to the Government of the United States. With 
many men it might have been different. 

In the autumn of 1861 wiser counsels prevailed, at least in 
the administration of the Government of the United States ; 
for President Lincoln himself authorized the recruitment of 
a Division in New England, and officered it by an order 
under his own hand, the majority of the commanding officers 
of which had been associates of Mr. Gushing in the Charles- 
ton convention, and nine-tenths of whose men had voted with 
him at the polls against Mr, Liijcoln. This Division was 
specially designated for operations in the Gulf Slave States 
at the mouth of the Mississippi. 

In that hour of deadly peril, would it have been well to 
have driven away from the service of the United States 
every Democrat who had preferred the unity of the country 
to the extinction of slavery .-* That question, history has 
answered. 

While this Division was organizing, came the seizure of 
the British mail-steamer " Trent," by Gapt. Wilkes, and the 
capture therefrom of Mason and Slidell, the Confederate am- 
bassadors to England and France, with their retinue. This 
capture raised very grave questions of international law be- 
tween this country and Great Britain, whether this act of 
Wilkes could be justified by his Government. 

Upon this question the opinion of Mr. Gushing was asked, 
first by Mr. Secretary Seward, and second by the merchants 



12 

of New York through the mayor of the city, because its 
solution had an important bearing upon their commercial 
adventures. I have before me a printed copy, bearing date 
Nov. 29, 1 86 1, of the opinion to the merchants of New York. 
I myself carried the opinion of Mr. Gushing — in which he 
paid me the great compliment to ask me to unite — to 
Washington, and read it to Mr. Seward. His- reply was, 
" You gentlemen are doubtless right in your law ; but I shall 
be obliged to send back Mason and Slidell to England, 
notwithstanding." 

That opinion, I doubt not, may be found among the papers 
of the case in the archives of the State Department. 

Well and vigorously reasoned, supported by copious quota- 
tions from leading writers on international law, and jurists, 
especially those of England, including Lord Stowell and 
Philimore, that opinion was most emphatic and decided, that 
Wilkes not only should be justified by our Government in 
his action ; but, further, that we were entitled to hold the 
rebel ambassadors, and England had no just cause for com- 
plaint. I take leave to quote a few of the closing sen- 
tences from Mr. Cushing's opinion to the merchants of New 
York : — 

" Those gentlemen, when brought within the jurisdiction of the United 
States, are subject to be dealt with as prisqners of war, or they may be 
proceeded against for treason, as Mr. Laurens was ; but they could not 
be dealt with by us in either of those capacities while they were on board 
' The Trent.' We are to find a reason to justify their personal arrest 
while there. We have that sufficient reason, I think, in the fact that they 
were diplomatic ministers of the Government of the insurgent States, 
commissioned as such, and as such destined for Great Britain and 
France. That is the simplest expression of the case, and, in my opin- 
ion, the true and only tenable ground on which to maintain the act of 
Capt. Wilkes. 



'•To conclude, then: In my judgment, the act of Capt. Wilkes was 
one which any and every self-respecting nation must and would have 
done by its own sovereign right and power, regardless of consequences. 
It was an act which, it cannot be doubted, Great Britain would have done 
under the same circumstances. At the same time, it was an act amply 
justified by the principles and doctrines of international jurisprudence. 
We may well regret that occasion, for the act has occurred, and that tlie 



13 

seizure needed to be done from on board a vessel, and still more a mail- 
packet of Great Britain, with whom, for all possible reasons, we desire 
to continue on the footing of cordial amity. But, Messrs. Mason and 
Slidell not having been embarked on board of ' The Trent ' by the Brit- 
ish Government, that Government, as such, has not been offended by 
the seizure. ' The Trent,' her officers acting on their own responsibility, 
would have no immunity from the ordinary laws of war, which affect 
the vessels of a great power equally as of a small one ; and Great 
Britain cannot fail, I think, to perceive that, as no offence was intend- 
ed to her in the matter, and as rights of belligerency were exercised 
by Capt Wilkes in the most moderate form, without seizure of mails, 
without bringing in as prize, without injury to private property, her 
national pride and her national honor conspire to dictate the most 
amicable construction of this act of sovereignty and belligerent right of 
the United States." 

But alas for the truth of history! Eighteen years have 
not passed since that most important opinion was given ; 
and the sod was not yet green over the grave of its author, 
when I find, in a memorial prepared in behalf of the mem- 
bers of the Bar Association of Mr. Cushing's native county, 
Essex, in commemoration of his services and character, which 
was entered upon the records of the Supreme Court of Mas- 
sachusetts, the following sentences : — 

"The 'Trent' affair was an early incident of the civil war. The cap- 
ture of the Confederate citizens was the subject of general gratulation. 
Mr. Gushing advised at once that they could not be held, but must be sur- 
rendered upon the British demand. That judgment prevailed, and was 
carried into effect by a despatch, to the writing of which he contributed, 
but its entire authorship is not to be ascribed to him." 

I cannot hope that this feeble tribute of my friendship to 
this great publicist will find a place upon the records of this 
Circuit Court of the United States ; but I will take care, with 
the leave of the court, that a copy of it shall find place among 
its files, so that at least the court in one circuit of the United 
States in which Mr. Cushing so largely practised may have 
the benefit of his opinion when, hereafter in another war, the 
same question may be put in issue. 

President Lincoln, appreciating this exhibition of loyalty 
and desire to serve his country on the part of Mr. Cushing, 
at the request of the general commanding, appointed Mr, 



14 

Cushing- as brigadier-general of volunteers, and assigned him 
to duty in the Division then being recruited, of which I have 
spoken ; but subsequently withdrew his name from the Senate 
by the inspiration of the Governor of Massachusetts-;, who was 
not then friendly either to the commanding^ general or the pro- 
spective brigadier, upon the suggestion that such an appoint- 
ment would be a reflection upon him for having refused the 
services of Gen. Gushing earlier in the war. 

I pass over Mr. Cushing's distinguished services to the 
Government in connection with the Washington treaty, the 
most distinguished part which he took before the great tri- 
bunal of arbitration at Geneva, where he alone of all the 
counsel employed by both nations could speak to that august 
body in a language which all the judges could understand and 
fully comprehend ; for these are all matters of written and 
undisputed history, and my aim is only to set history right 
so far as I know it, so that his loyalty to his country may more 
distinctly appear, and that his character may be fully dis- 
closed, and that all who choose so to do may know them. 

Upon the occurrence of a vacancy in the office of chief 
justice of the Supreme Court of th^ United States, President 
Grant tendered the nomination to that high office to Mr. 
Gushing as a tribute to his great services to the country as its 
legal adviser. 

Of his fitness for that office, save the possible disqualifica- 
tion of age, no question was raised; for Mr. Gushing had 
held with high honor a place upon the supreme bench of 
Massachusetts, upon which, as we know, there ever have 
been and are now men eminently fit to take such position 
in the Supreme Gourt of the United States. 

Opposition arose to the nomination in the Senate, led by 
a senator from the Pacific slope, who had formerly, as a boy, 
been a printer in a newspaper-office in Newburyport, and 
held some grievance. The sole ground of opposition was the 
fact that Mr. Gushing, in the spring of 1861, had written a 
harmless letter of introduction of a former clerk in his ofifice, 
who belonged in the South and was going back there, to the 
President of the Gonfederate States. This letter, if it had 
been published when it was written, would never have caused 



15 

a passing thought ; but Mr. Gushing, sensitive to any possible 
ground of opposition, wrote to the President to withdraw his 
name, which was done, and he remained in the lucrative prac- 
tice of his profession, the annual reward of which was four 
times the salary of the office to which he was named. 

I have to apologize for the time I have taken ; but I have 
hoped to do a service to the country by placing before the 
court in a true light the services and traits of character of one 
of its greatest advocates and ablest jurists ; and I have been 
impelled so to do by a sense of duty to the friendship which 
this great man has for many years bestowed upon me, and 
only desire to add, with the deepest sensibility of regret, Would 
that what I say were worthier of the man ! 



1 



